Appeal No. 96-2120
Application 08/300,097
art combination would be designed to have the same bound excited energy state, these
states would be different due to unavoidable manufacturing tolerances [answer, page 5].
The examiner asserts that “predetermined” is broad enough to read on practically anything
so that the prior art structure with unavoidable manufacturing tolerances would result in a
device having a “predetermined” pattern of the plurality of different bound excited energy
states.
Although we agree with the examiner that “predetermined” is a term which should be
construed very broadly, it cannot be interpreted so broadly as to read on the potential
random occurrences of differences which might result from common manufacturing
tolerances. The unintended differences resulting from manufacturing tolerances are the
very opposite of the predetermined differences recited in the claims. We do not agree
with the examiner’s assertion that the devices of the prior art and the claimed invention are
indistinguishable from each other. These devices are manufactured products which have
specific properties. One of the claimed properties of appellant’s device is that the plurality
of quantum wells have one of a plurality of different bound excited energy states arranged
in a predetermined pattern. No manufactured device having accidental or random
differences can possibly possess these properties.
We would also interpret the phrase “one of a plurality of different bound excited energy
states” in claim 15 as requiring an intended difference, and the phrase should not be
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